This
matter is before the Court on Plaintiffs' Motion to
Compel Discovery (ECF No. 183). Plaintiffs request that the
Court enter an order compelling Third-Party Defendant
Advanced Correctional Healthcare (“ACH”) to
properly answer Plaintiffs' First Interrogatories and
produce documents responsive to Plaintiffs' First
Requests for Production. As explained below, the motion is
granted in part and denied in part.

I.
BACKGROUND RELEVANT TO THE DISCOVERY MOTION

Plaintiffs
served their First Interrogatories (numbered 1-15) and First
Requests for Production of Documents (numbered 1-21) to
“defendant” ACH via email on January 31,
2018.[1]On February 19, 2018, ACH's counsel
emailed Plaintiffs' counsel stating that ACH was not a
defendant in the case, but instead a third-party defendant.
ACH's counsel requested correction of the discovery
requests served upon “defendant” ACH, and stated
ACH would serve its objections and answers within thirty days
of receipt of the corrected discovery requests.[2] Plaintiffs'
counsel replied “understood, ” however, the
discovery requests were never re-served.[3]

ACH
served its answers and objections to Plaintiffs'
interrogatories and requests for production on March 2,
2018.[4] Plaintiffs' counsel sent Golden Rule
letters regarding ACH's objections, responses, and
answers to Plaintiffs' discovery requests on March 8 and
9, 2018.[5] A telephone conference was set up for
March 15, 2018.

Shortly
before the March 15 telephone conference, ACH served
supplemental answers and responses to Plaintiffs'
interrogatories and requests for production.[6] Counsel for
Plaintiffs and ACH then conferred by telephone, resolved some
of their disputes, and ACH agreed to further supplement some
of its interrogatory answers.

In a
letter dated March 23, 2018, Plaintiffs' counsel
requested that ACH provide a written response to
Plaintiffs' Golden Rule letters. On March 27, 2018, ACH
served its second supplemental answers and responses
to Plaintiffs' interrogatories and requests for
production.[7]Counsel conferred again by telephone on
April 3, 2018 and reached an agreement limiting the scope of
some of the interrogatories and requests for production.

On
April 30, 2018, ACH served its third supplemental
answers and responses to Plaintiffs' interrogatories and
requests for production.[8] ACH also provided a privilege log for
documents withheld as responsive to Requests 3, 5, 20, and
21.[9]

Plaintiffs
filed the instant Motion to Compel Discovery on May 2, 2018.

On May
14, 2018, ACH served its fourth supplemental answers
and responses to Plaintiffs' interrogatories and requests
for production.[10] ACH also provided a revised privilege
log for documents it withheld as responsive to Requests 3, 4,
20, and 21, and Interrogatory 7.[11]ACH filed its response in
opposition to Plaintiffs' motion to compel on May 16,
2018.

II.
OBJECTIONS ASSERTED IN ACH'S SUPPLEMENTAL DISCOVERY
RESPONSES

Plaintiffs
request the Court overrule as untimely all the objections ACH
asserted in its supplemental discovery answers and
responses. They argue that ACH's original answers and
responses consisted almost entirely of boilerplate
objections, such as “overbroad, ” “unduly
burdensome, ” or asserting work product or
attorney-client privilege. According to Plaintiffs, it was
only after Plaintiffs notified ACH of the claimed
deficiencies in ACH's original discovery answers and
responses, that ACH served supplemental answers or responses
expanding its objections significantly. Plaintiffs contend
ACH waived all objections asserted for the first time in
ACH's supplemental answers and responses, and not
asserted in ACH's original answers and responses served
on March 2, 2018.

ACH
urges the Court to apply the proportionality considerations
of Fed.R.Civ.P. 26(b). It repeatedly emphasizes that
Plaintiffs served substantial, overwhelming, and voluminous
discovery requests upon it, despite having no pending claim
in this case against ACH. All of Plaintiffs' claims
against ACH have been dismissed by the Court, and ACH remains
in the case merely as a third-party defendant brought in by
the Wilson County Defendants on a contractual indemnity
claim.

ACH's
current status in this case-as a third-party defendant on
claims asserted by the Wilson County Defendants-does not
preclude it from being required to respond to discovery
requests served by Plaintiffs. Although all of
Plaintiffs' claims asserted against ACH and its employees
have been dismissed, ACH remains a party in the case and it
has an obligation to respond to discovery requests served
upon it.[12] The number of interrogatories and
requests for production Plaintiffs served upon ACH are not
disproportionate given ACH's involvement and knowledge of
the care and treatment of Naomi Keith at issue in this case.

ACH
also argues that while many of Plaintiffs' discovery
requests are patently objectionable on their face, it has, in
the spirit of cooperation, supplemented the objections it
initially and timely asserted. ACH contends these
supplemented responses and objections merely provide further
specific details about the discovery requests to which it had
already objected.

Federal
Rule of Civil Procedure 33(b)(2) sets a 30-day time period
for answering or objecting to an interrogatory, unless the
parties stipulate to or the court orders a shorter or longer
time period.[13] If objecting to an interrogatory, Rule
33(b)(4) provides that “[t]he grounds for objecting . .
. must be stated with specificity. Any ground not stated in a
timely objection is waived unless the court, for good cause,
excuses the failure.” Rule 34(b)(2)(A) likewise
requires a party to whom a request for production or
inspection is directed to “respond in writing within 30
days after being served, ” or, for early discovery
requests, 30 days after the parties' first Rule 26(f)
conference. Rule 34(b)(2)(B) also provides that “[f]or
each item or category, the response must either state that
inspection and related activities will be permitted as
requested or state with specificity the grounds for objecting
to the request, including the reasons.” In lieu of
permitting inspection, the responding party may state that it
will produce copies of documents or of ESI.[14] “The
production must then be completed no later than the time for
inspection specified in the request or another reasonable
time specified in the response.”[15] Finally,
“[a]n objection must state whether any responsive
materials are being withheld on the basis of that objection.
An objection to part of a request must specify the part and
permit inspection of the rest.”[16]

“When
ruling upon a motion to compel, the court generally considers
those objections which have been timely asserted and relied
upon in response to the motion.”[17] Objections
that a responding party fails to initially raise in the
answer or response to the discovery request are deemed
waived.[18] Objections that are initially raised-but
not reasserted and relied upon in response to a motion to
compel discovery-will be deemed abandoned.[19] An objecting
party's failure to provide evidence and affidavits in
support of discovery objections at the time initial discovery
responses are served does not waive the
objections.[20]

Any
objections ACH failed to assert within its time period for
answering the interrogatories or responding to the requests
for production are deemed waived. Under Rules 33(b)(2) and
34(b)(2)(A), ACH was required to assert any objections within
30 days of the date Plaintiffs served their interrogatories
and requests for production, which were served on January 31,
2018. However, in this case, ACH's counsel reasonably
understood Plaintiffs' counsel as agreeing to re-serve
the discovery requests upon ACH and to extend ACH's
deadline for responding to thirty days after re-serving them.
It likely would not have been until ACH's counsel
received Plaintiffs' Golden Rule letters on March 8 and
9, 2018, that they realized Plaintiffs' counsel did not
intend to re-serve the discovery requests. The Court
therefore construes March 8 as the date Plaintiffs'
discovery requests were re-served on ACH. Based upon
ACH's understanding of the parties' agreement,
ACH's discovery responses would have been due 30 days
later, on April 7, 2018. ACH's March 2 original, March 15
supplemental, and March 27 second supplemental answers and
responses were all served prior to the April 7, 2018
deadline. The Court finds ACH's original, supplemental,
and second supplemental answers and responses were therefore
timely served.

Plaintiffs
argue that ACH's discovery answers and responses changed
significantly between its March 2 original and its later
multiple supplemental ones, and ACH should not be permitted,
once its original objections are challenged, to raise other
objections. The correspondence between counsel, however,
reveals that ACH's supplementations were in large part
the result of conferring efforts between counsel. ACH's
supplemental answers and responses provide, at
Plaintiffs' request, more details and explanation for the
basis for ACH's original boilerplate objections to the
discovery requests. Furthermore, ACH served at least its
first and second supplementations within what ACH believed
was the agreed time period for responding to all the
interrogatories and requests for production at issue.

The
Court has reviewed ACH's original, supplemental, and
second supplemental discovery answers and responses to all
the interrogatories and requests at issue in Plaintiffs'
motion. Based upon that review, the Court finds ACH's
supplemental responses reassert and expand upon objections
asserted in timely served discovery answers and responses,
thus all objections ACH has reasserted and relied upon in
response to Plaintiffs' motion to compel are timely.

III.
INTERROGATORY LIMIT OBJECTIONS

ACH
objected to each of Plaintiffs' Interrogatories 4 through
15 as exceeding the allowable interrogatory limit in
Fed.R.Civ.P. 33(a). Rule 33(a) limits the number of written
interrogatories, including all discrete subparts, to no more
than 25 interrogatories unless otherwise stipulated or
ordered by the court. In this case, the parties requested and
the original Scheduling Order (ECF No. 17) allows the parties
to serve a maximum of 30 interrogatories.

Plaintiffs'
First Interrogatories to ACH are comprised of fifteen
numbered interrogatories, however, two of the interrogatories
are drafted in such a way that they clearly have discrete
subparts. Specifically, the Court finds Interrogatory 3 is
comprised of nine subparts[21] and Interrogatory 4 is
comprised of six subparts[22] that are discrete and count
separately for purposes of the interrogatory limit. However,
because Plaintiffs only served fifteen interrogatories, the
additional subparts in Interrogatories 3 and 4 do not cause
the total to exceed the 30-interrogatory maximum. ACH's
objections that it should not be required to answer
Interrogatories 4 through 15 because they exceed the
allowable interrogatory limit are overruled. To any extent
ACH has not fully answered Plaintiffs' Interrogatories 4
through 15 based solely upon its interrogatory-limit
objections, it shall serve supplemental answers to those
interrogatories within ten (10) days of this Order.

IV.
TIMELINESS AND SUFFICIENCY OF ACH'S PRIVILEGE
LOGS

Plaintiffs
argue that ACH's claims of attorney-client privilege and
work product should be waived because ACH did not timely
provide a privilege log for the responsive documents it was
withholding, and the privilege logs eventually provided are
insufficient because they do not contain all the required
information to establish each element of the privilege or
protection being asserted. Plaintiffs further point out that
ACH has not offered any explanation why it waited so long to
provide a privilege log.

ACH
responds that Plaintiffs' counsel requested a privilege
log on April 3, 2018 and, pursuant to their agreement, ACH
produced a privilege log on April 30, 2018, and later a
supplemental privilege log. ACH maintains that the privilege
log and supplemental privilege log it produced describe in
detail the documents or information to be protected and are
in full compliance with Rule 26(b)(5). ACH also points out
that the Wilson County Defendants provided discovery
responses similar to ACH's without producing privilege
logs, yet Plaintiffs have not pursued a motion to compel
against those defendants.

A.
Timeliness

Federal
Rule of Civil Procedure 26(b)(5)(A) provides that when a
party withholds information otherwise discoverable by
claiming that the information is privileged or subject to
protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications . .
. not produced or disclosed . . . in a manner that, without
revealing the information itself privileged or protected,
will enable other parties to assess the claim.

The
party who withholds discovery materials under a claim of
privilege or work product must provide sufficient
information, usually in the form of a privilege log, to
enable the party seeking the discovery to evaluate the
applicability of the privilege or protection.[23]
“Failure to follow the Federal Rules of Civil Procedure
may result in waiver of the attorney-client privilege and/or
work-product protection.”[24] If a party fails to make
the required showing, by not producing a privilege log or by
providing an inadequate one, the court may deem the privilege
waived.[25]

Under
Rule 26(b)(5)(A), a party must expressly make the claim of
privilege or protection at the time it
“withholds” the discoverable information. Thus,
the date a party is deemed to “withhold”
discoverable material is the date when the party's
responses to the discovery requests are due.[26]

In this
case, ACH asserted attorney-client privilege and/or work
product in its original March 2, 2018 answers to
Interrogatories 4, 5, 7, 14, and 15, [27] and responses
to Requests for Production 3-5, 16, 17, 20, and
21.[28] Almost sixty days after it served its
original discovery answers and responses, ACH provided a
three-page privilege log on April 30, 2018 for documents it
was withholding as responsive to Plaintiffs' Requests 3,
5, 20, and 21. On May 14, 2018, after Plaintiffs filed their
motion to compel, ACH provided a five-page revised privilege
log for Requests 3, 4, 20, 21, and Interrogatory 7.

Due to
the confusion when ACH's discovery responses were
actually due, the Court declines to find ACH waived its
claims of attorney-client privilege and work product by its
failure to serve its privilege log when its discovery
responses were due. As noted above, ACH likely realized on
March 8, 2018 that Plaintiffs' counsel was not planning
to re-serve the discovery requests. Construing March 8 as the
date Plaintiffs' discovery requests were presumptively
re-served on ACH, then ACH's discovery responses would
have been due 30 days later, or on April 9, 2018. ACH
provided its initial privilege log on April 30, 2018, after
its counsel spoke with Plaintiffs' counsel on April 3,
2018. ACH provided a revised privilege log two week later on
May 14, 2018, after Plaintiffs raised issues with the
sufficiency of ACH's original privilege log.

As
recognized by courts in this District, waiver of privilege is
a harsh sanction and should be reserved as a penalty where
the offending party committed unjustified delay in
responding.[29]The Court finds ACH's relatively
short delay in providing a privilege log was not unjustified
and does not warrant the harsh sanction of waiver.

B.
Sufficiency

Plaintiffs
also argue that the privilege logs ACH produced are
insufficient because they do not contain all the required
information to establish each element of the privilege or
protection being asserted.

The
level of detail required in a privilege log is determined on
a case-by-case basis, but courts in the District of Kansas
have stated that a privilege log generally should contain the
following:

1. A description of the document explaining whether the
document is a memorandum, letter, e-mail, etc.;

2. The date upon which the document was prepared;

3. The date of the document (if different from # 2);

4. The identity of the person(s) who prepared the document;

5. The identity of the person(s) for whom the document was
prepared, as well as the identities of those to whom the
document and copies of the document were directed,
“including an evidentiary showing based on competent
evidence supporting any assertion that the ...

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